Excerpt: - 1. this appeal is from an insolvency proceeding before the district judge of madura. the official receiver seems to have made an attempt to sell certain properties, on which the appellant before us put forward a claim that such properties belonged to him and not to the insolvent and should not be sold. these properties were included in a mortgage decree obtained by the respondents against the insolvent. strangely enough, the official receiver thought that he had power to disposed of a petition like this and thinking that a prima facie title had been made out by the claimant, he passed an order releasing the property from sale, holding that the properties belonged to the claimant. on this the mortgage decree-holder conceiving that he was somehow or other aggrieved by the order put in an.....

Judgment:

1. This appeal is from an insolvency proceeding before the District Judge of Madura. The Official Receiver seems to have made an attempt to sell certain properties, on which the appellant before us put forward a claim that such properties belonged to him and not to the insolvent and should not be sold. These properties were included in a mortgage decree obtained by the respondents against the insolvent. Strangely enough, the Official Receiver thought that he had power to disposed of a petition like this and thinking that a prima facie title had been made out by the claimant, he passed an order releasing the property from sale, holding that the properties belonged to the claimant. On this the mortgage decree-holder conceiving that he was somehow or other aggrieved by the order put in an appeal to the District Judge. The District Judge thereupon came to the conclusion and rightly, in our opinion, that the secured creditor the mortgage decree holder, was not in any way bound by any proceedings taken by the Official Receiver in this matter. But he though tat the same time that the effect of the order, if allowed to stand, would be deprive the secured creditor of his right of sale which conclusion we are unable to follow. The secured creditor undoubtedly was not at all affected by the order of the Official Receiver. On that the District Judge proceeded to allow the appeal petition before him and set aside the order of the Official Receiver without deciding whether the property actually belonged to the claimant or to the insolvent, the form of the order which was drawn up proceeded further and it declared that the claim petition put in by the claimant do stand dismissed. The effect of that order if left standing must necessarily be that the property should be treated as the insolveit's and not as the claimant's, a position which the District Judge did not arrive at in his judgment.

2. We think that the whole of the proceeding are misconceived. In the first place, the Official Receiver had no power to make any order in a claim petition. It is not a power which has been delegated to him under Section 80 of the Provincial Insolvency Act, V of 1920. If the claimant wanted to prevent the sale of the properties as belonging to the insolvent, he should have applied to the District Judge direct, to take action under Section 4 of the Act He did not do so. That being so, we must set aside all the proceedings in the lower Courts and leave the parties in statu duo ante. The claimant if he finds that the Official Receiver either at his own instance or at the instance of any creditor proposes to sell the properties which he claims to be his, may, if so advised, apply to the District Judge under Section 4 of the Act for a proper order to be passed.

3. We therefore allow the appeal and set aside all the proceedings in the Court and direct each party to bear his own costs.